Adams v. Missouri Pacific Railway Co.
| Decision Date | 21 December 1889 |
| Citation | 12 S.W. 637,100 Mo. 555 |
| Parties | Adams v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 100 Mo. 555 at 570.
Appeal from Cass Circuit Court. -- Hon. N. M. Givan, Judge.
Reversed and remanded.
Adams & Bowles and T. J. Portis for appellant.
(1) The court should have sustained the demurrer to the evidence and directed a verdict for the defendant on the ground that the injury which plaintiff suffered was not proximate to the wrong attributable to the defendant in directing the plaintiff to leave the car at the point he did. Searle v Railroad, 65 Texas, 274; Lewis v. Railroad, 54 Mich. 55; Proctor v. Jannings, 6 Nevada, 424; Doggett v. Railroad, 78 N.C. 305; Wood v Railroad, 49 Mich. 370; Pierson v. Duane, 4 Wall. 605; Francis v. Transfer Co., 5 Mo.App. 7; Kistner v. City of Indianapolis, 100 Ind. 210; Car Co. v. Barker, 4 Col. 344; Scheffer v. Railroad, 105 U.S. 249; Henry v. Railroad, 76 Mo. 288; Cuff v. Railroad. 35 N. J. (6 Vroom) 32. In Trigg v. Railroad, 74 Mo. 147, at page 153, the court cite with approval the case of Francis v. Transfer Co. and Car Co. v. Barker, 4 Col. supra. (2) Where a voluntary action intervenes between an incident and an injury resulting from the voluntary action, the incident is not the direct cause of the injury, even if it occasioned the voluntary action. Lewis v. Railroad, 54 Mich. 55; Blake v. Newfield, 68 Maine, 365; Railroad v. Marion, 104 Ind. 239; Hyde v. Jamaica, 27 Vermont, 458; People v. Rockwell, 39 Mich. 503; Railroad v. Burroughs, 33 Mich. 6; Morrison v. Davis, 20 Pa. St. 171; Railroad v. Burney, 71 Illinois, 391; Railroad v. Staley, 41 Ohio St. 118. (3) It is contributory negligence if, in the attempt to avoid that which is merely inconvenient and in no sense dangerous, the person injured encounters a danger obviously apparent to the minds of reasonable men. Railroad v. LeGeirse, 51 Texas, 189; Damont v. Railroad, 9 La. Ann. 441; Railroad v. Abel, 59 Ill. 131; Govett v. Railroad, 16 Gray, 501; Railroad v. Hendricks, 26 Ind. 228; Railroad v. Aspell, 23 Pa. St. 147. (4) The act of the conductor, in receiving plaintiff's fare, did not bind him to stop his train at a station, or at any place convenient for the plaintiff to alight, or at any place other than the exigencies of the service in which the train was engaged demanded. Railroad v. Hatton, 60 Ind. 12; Railroad v. Randolph, 53 Ill. 513. (5) Defendant's instruction, in the nature of a demurrer to the evidence, should have been given. Plaintiff's evidence shows such contributory negligence as precludes his recovery. Nelson v. Railroad, 68 Mo. 593; Kelley v. Railroad, 70 Mo. 604; Henry v. Railroad, 76 Mo. 293; Lennox v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Murch v. Railroad, 29 N. H. (9 Foster) 9; Mackey v. Railroad, 67 Barb. 528; Railroad v. Goddard, 25 Ind. 185-199; Downey v. Hendrick, 46 Mich. 501; Hassenger v. Railroad, 48 Mich. 209. (6) The defendant had a right to make reasonable regulations as to mode of transporting the plaintiff as a passenger. Logan v. Railroad, 77 Mo. 663; Johnson v. Railroad, 46 N.H. 213; Cheney v. Railroad, 11 Met. 121; Railroad v. Bartram, 11 Ohio St. 457; Railroad v. Nozum, 50 Ind. 141. (7) Passengers must take the responsibility of informing themselves of the every-day incidents of railway traveling. Mitchell v. Railroad, 51 Mich. 236; Railroad v. Hazzard, 26 Ill. 373. (8) It is the duty of a person about to take passage on a railroad train to inform himself when, where and how he can go and stop according to the regulations of the railroad company. And if he makes a mistake, not induced by the railroad company, against which ordinary care on his part in this respect would have protected him, he has no remedy against the company for the consequences. Beaucamp v. Railroad, 56 Texas, 239; Railroad v. Applewhite, 52 Ind. 540; Railroad v. Nozum, 50 Ind. 141; Cheney v. Railroad, 11 Met. 121; Railroad v. Proctor, 1 Allen, 267; Johnson v. Railroad, 46 N.H. 213; Railroad v. Bartram, 11 Ohio St. 457; Dietrich v. Railroad, 71 Penn. St. 436; Railroad v. Randolph, 53 Ill. 510. By his ticket, a passenger acquires only the right to be carried according to the custom of the road. He can not insist on being carried out of the customary course of the road. Railroad v. Randolph, 53 Ill. 511. (9) The damages in this case seem so outrageous as to strike every one with the enormity and injustice of them, and so as to induce anyone to believe that the jury must have acted from prejudice or partiality. Railroad v. Peavey, 29 Kansas, 129; Railroad v. Milliken, 8 Kansas, 647; Railroad v. Hand, 7 Kansas, 380; Railroad v. Young, 8 Kansas, 659; Railroad v. Dwyer, Supreme Court of Kansas (not yet reported); Collins v. City of Council Bluffs, 35 Iowa 432; Rose v. Railroad, 39 Iowa 256; Potter v. Railroad, 22 Wis. 615; Spicer v. Railroad, 29 Wis. 580; Railroad v. McAra, 52 Ill. 296; Railroad v. McKean, 40 Ill. 218; Railroad v. Henry, 62 Ill. 142.
Railey & Burney for respondent.
(1) The defendant, being a common carrier of passengers for hire, was legally bound to provide reasonable and safe accommodations at its stations for the convenience of its passengers in alighting from its trains, and to deliver them at such stations and afford them an opportunity of alighting thereat and its failure and refusal to so deliver plaintiff was culpable negligence. Winkler v. Railroad, 21 Mo.App. 99, 105, 106 and 107; Dawson v. Railroad, 2 Am. & Eng. R. R. Cases, 134, and cases cited; Railroad v. Whitfield, 44 Miss. 481; Hutchinson on Carriers, sec. 602; Shearman & Redfield on Neg., secs. 12 and 280; Railroad v. White, 88 Pa. 327; Stewart v. Railroad, 53 Tex. 289; S. C., 2 Am. & Eng. R. R. Cases, 497; Railroad v. Terry, 62 Tex. 380; S. C., 21 Am. & Eng. R. R. Cases, 323; Kelley v. Railroad, 70 Mo. 604; Doss v. Railroad, 59 Mo. 27. (2) The defendant was legally bound, not only to furnish a safe and suitable place of landing for its passengers, but was also bound to furnish them a convenient and safe means or way of egress, by which they could depart from its premises and right of way without injury. Its failure to perform this duty was negligent and wrongful. Hulbert v. Railroad, 40 N.Y. 145; Hoffman v. Railroad, 75 N.Y. 605; McDonald v. Railroad, 26 Ia. 124; Stewart v. Railroad, 53 Texas, 289; Patten v. Railroad, 32 Wis. 533; Gaynor v. Railroad, 100 Mass. 211; Hartwig v. Railroad, 49 Wis. 362; 2 Thompson on Neg., p. 1085, sec. 3; Stafford v. Railroad, 22 Mo.App. 333; Chance v. Railroad, 10 Mo.App. 351; Dillaye v. Railroad, 56 Barb. 30-39; Shearman & Redfield on Neg. [3 Ed.] sec. 275, and cases cited; Hutchinson on Carriers, secs. 516, 517, 518 and 519; 1 Rorer on Railroads, p. 479, sec. 3; Railroad v. Rosenweig, 26 Am. & Eng. R. R. Cases, 489. (3) Having stopped the train at an unusual and dangerous place, it was the duty of the conductor, who is presumed to have known the surroundings and the danger of leaving the premises, to advise the passenger how to get out and to render such assistance and attentions and furnish such means as was in his power to extricate him from his perilous position. His failure to do so was gross negligence. Railroad v. Whitfield, 44 Miss. 481; Allender v. Railroad, 43 Ia. 276-281; Cartwright v. Railroad, 16 Am. & Eng. R. R. Cases [Mich.] p. 321; Railroad v. Matthews, 7 Vroom, 532; Klein v. Jewett, 26 N. J. Eq, 480; Railroad v. Howe, 52 Miss. 202. (4) The negligence of defendant's servants in failing to carry plaintiff to its common landing at the depot, in failing to provide him a safe means of egress from its premises and right of way and in failing to render him any assistance in extricating himself from the perilous position in which they had placed him, all combined to bring about the injury complained of, and was the immediate and proximate cause thereof. "Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately and directly brought about by intervening causes, if such intervening causes were set in motion by the original wrong-doer." Harris v. Railroad, 4 McCrary, 454; White v. Railroad, 5 Dillon, 428 (434); Evans v. Railroad, 11 Mo.App. 463; Patten v. Railroad, 32 Wis. 524; Hartwig v. Railroad, 49 Wis. 364-365, and cases cited; Brown v. Railroad, 54 Wis. 342, and cases cited; Railroad v. Kemp, 61 Md. 74; Strauss v. Railroad, 75 Mo. 186. (5) The question as to whether the defendant's negligence was the proximate cause of the injury complained of was properly for the jury to determine. If the evidence shows a state of facts from which different minds might fairly and honestly draw different conclusions as to what was the controlling or direct cause of the matter in controversy, it is a question to be submitted to the jury, although such facts are undisputed. Stafford v. Railroad, 22 Mo.App. 333; Clemens v. Railroad, 53 Mo. 366; Kellogg v. Railroad, 26 Wis. 223; Railroad v. Kellogg, 94 U. S. (L. C. P. Co. Ed. 356) 459; Haff v. Railroad, 4 McCrary, 622; White v. Railroad, 5 Dillon, 428 (434); Railroad v. Fleming, 18 Am. & Eng. R. R. Cases [Tenn.] 347; Evans v. Railroad, 11 Mo.App. 463; Patten v. Railroad, 32 Wis. 524; Hartwig v. Railroad, 49 Wis. 364-5; Brown v. Railroad, 54 Wis. 342, and cases cited; Ehrgott v. Mayor, 96 N.Y. 264; Boss v. Railroad, 32 Alb. L. J. [R. I.] 266; Hart v. Bridge Co., 80 N.Y. 622; Railroad v. Van Steinburg, 17 Mich. 99, 122; Railroad v. Kemp, 61 Md. 74. (6) Where freight trains are in the habit of carrying passengers, a person admitted thereon as such is entitled to all the rights of a passenger, and the company incurs the same liability to him for an injury received by its negligent or wrongful act as if it occurred...
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